Smt. Sunita vs State Of U.P. And 4 Others
2023 Latest Caselaw 7918 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 

 
Court No. - 4
 

 
Case :- WRIT - B No. - 546 of 2023
 

 
Petitioner :- Smt. Sunita
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Rahul Kumar Tyagi
 
Counsel for Respondent :- C.S.C.,Sunil Kumar Singh
 

 

 
Hon'ble Jayant Banerji, J.

1. Heard learned counsel for the petitioner, Shri O.P. Sharma, learned Additional Chief Standing Counsel appearing for the State-respondents and Shri Sunil Kumar Singh, learned counsel appearing for the respondent no.5-Gaon Sabha.

2. This writ petition has been filed praying for the following reliefs:-

"(i) Issue an appropriate writ, order or direction for quashing the impugned judgment and order dated 17.08.2022 passed by Respondent no. 2 in Second Appeal No. 365 of 2022, Computer case no. ME202211000000365; Smt. Sunita Vs. State, the Impugned Judgment and order dated 26.11.2021 passed by respondent no. 3 in Appeal No. 02759 of 2018, Computer Case no. C201811000002759; Smt. Sunita Vs. Gram Sabha and others as well as the impugned judgment and order dated 23.04.2018, passed by Respondent no. 4, in original title No. 06052 of 2017, Computer case No. T201711520106052; Smt. Sunita Vs. State arising out of the proceedings under Section 229B/122B (4f) of Uttar State Pradesh Zamidari Abolition and Land Reforms Act, 1950.

(ii) Issue any other and further order, which this Hon'ble Court may deem fit and proper under the fact and circumstances of the case.

(iii) Award the cost of the writ petition to the writ petitioner."

3. Pursuant to the previous order dated 14.02.2023, a counter affidavit has been filed on behalf of respondent nos.3 and 4 and another counter affidavit on behalf of respondent no.5. Learned counsel for the petitioner states that he does not propose to file a rejoinder affidavit.

4. It appears that a suit was filed by the petitioner under Section 229-B read with Section 122-B(4F) of the U.P. Zamindari Abolition and Land Reforms Act, 19501 on 02.06.2009. Written statement dated 30.03.2016 was filed on behalf of the Gaon Sabha as well as the State of U.P.

5. In the plaint, the petitioner sought a declaration on the basis that she was in continuous possession for 18 years over the plot in question and she was constantly applying for mutation of her name in the revenue records, but the same was not being done. Claiming herself to be entitled to the benefit of sub-section (4F) of Section 122-B of the Act, 1950, the suit was filed. In the written statement, apart from denying the contents of the plaint, objections were raised regarding bar of Section 49 of the U.P. Consolidation of Holdings Act, 1953; disputing the entitlement of the petitioner; and, for rejection of plaint under Order VII, Rule 11 Code of Civil Procedure, 19082.

6. By an order dated 23.04.2018 passed in Case No.06052 of 2017, the Sub-Divisional Officer, Tehsil Meerut Sadar dismissed the suit holding that after enforcement of the U.P. Revenue Code, 20063, there is no provision pari materia to sub-section (4F) of Section 122-B of the Act, 1950 in the Code, 2006 and, therefore, the plaint was liable to be rejected under Order VII, Rule 11 CPC. It was further observed that the petitioner was merely seeking adjournments for the period of 8 years without taking any interest in the proceedings after filing of the suit.

7. Against the aforesaid order of the Sub-Divisional Officer, the petitioner filed an appeal before the Commissioner, Meerut Division, Meerut which came to be dismissed by the order dated 26.11.2021 while affirming the order of the Sub-Divisional Officer. The Court of the Commissioner held that there is no provision under the Code, 2006 for staking a claim on the property of the Government of Uttar Pradesh, Gaon Sabha or the Nagar Nigam by adverse possession, as provided under sub-section (4F) of Section 122-B of the Act, 1950. The second appeal preferred by the petitioner before the Board of Revenue, being Case No.SA/365/2022, was also dismissed by the order dated 17.08.2022 affirming the orders passed by the Commissioner and the Sub-Divisional Officer in view of the provisions of Section 231 of the Code, 2006.

8. The short legal question being urged by the learned counsel for the petitioner is that the Code, 2006 commenced with effect from 18.12.2015 and 11.02.2016 by way of separate notifications made under the Code, 2006. It is contended that prior to the date of commencement of the various provisions of the Code, 2006, the provisions of the Act, 1950 would apply and, therefore, the provision of sub-section (4F) of Section 122-B of the Act, 1950 would be applicable on the date of institution of the suit on 02.06.2009. Therefore, it is contended that the suit could not have been dismissed under Order VII, Rule 11 CPC by relying upon the provisions of Section 231 of the Code, 2006.

9. Learned Additional Chief Standing Counsel has referred to paragraph 9 of his counter affidavit to contend that the petitioner was unnecessarily delaying the disposal of the suit and, therefore, exercising powers under Order VII, Rule 11 CPC, the Sub-Divisional Officer justifiedly rejected the claim. However, on the legal issue with regard to the date of commencement of the Code, 2006, the learned Additional Chief Standing Counsel has fairly conceded that on the date of filing of the suit, the provisions of the Code, 2006 were not enforced.

10. Shri Sunil Kumar Singh, learned counsel appearing for the Gaon Sabha, though has opposed the writ petition, has also fairly stated that given the dates of commencement of the Code, 2006, the provisions of the Act, 1950 would be applicable given the date of filing of the suit by the petitioner.

11. Having heard the respective contentions of the learned counsel for the parties, it is apparent that the suit was instituted by means of a plaint dated 02.06.2009, which was contested by the respondent. The provisions of Order VII, Rule 11 CPC would come into play in the eventuality of any of the six conditions appearing therein. Given the notifications for commencement of the Code, 2006 on 18.12.2015 and 11.02.2016, the suit filed under the provisions of the Act, 1950 could not have been rejected under Order VII, Rule 11 CPC.

12. Section 231 of the Code, 2006 reads as under:-

"231. Applicability of the Code to pending proceedings. - (1) Save as otherwise expressly provided in this Code, all cases pending before the State Government or any Revenue Court immediately before the commencement of this Code, whether in appeal, revision, review or otherwise, shall be decided in accordance with the provisions of the appropriate law, which would have been applicable to them had this Code not been passed.

(2) All cases pending in any Civil Court immediately before the commencement of this Code which would under this Code be exclusively triable by a revenue court, shall be disposed of by such Civil Court according to the law in force prior to the date of such commencement."

The word 'commencement' appearing in Section 231 has not been defined in the Code, 2006. However, its definition appears in sub-section (10) of Section 4 of the U.P. General Clauses Act, 1904 as follows:-

"Commencement", used with reference to an Act, shall mean the day on which the Act comes into force;"

The Code, 2006 came into force from 18.12.2015 and 11.02.2016 pursuant to notifications under sub-section (3) of Section 106 of the Code, 2006.

13. Given the aforesaid provision of the Code, 2006 and the applicability of the provisions of the Act, 1950 in pending cases before the commencement of the Code, 2006, the plaint could have not been rejected under Order VII, Rule 11 CPC.

14. Under the circumstances, the writ petition is allowed and the orders dated 23.04.2018, 26.11.2021 and 17.08.2022 passed by the Sub-Divisional Officer, the Commissioner and Board of Revenue respectively are hereby set aside. The parties, who were represented before the Court, shall appear before the Sub-Divisional Officer on 11.04.2023 alongwith a certified copy of the order passed today. The Sub-Divisional Officer shall thereafter fix a date and proceed with the matter expeditiously. The petitioner shall cooperate and shall appear on the dates fixed by the Sub-Divisional Officer either in person or through her advocate and not seek any unnecessary adjournments. The Sub-Divisional Officer shall endeavour to decide the matter within a period of six months.

15. It is made clear that any observation made hereinabove shall not be taken as a reflection or opinion on merits of the case.

Date 20.03.2023

SK

(Jayant Banerji, J.)